21 U.S.C. § 851 Does Not Bar Defendant From Challenging 5+ Year-Old Conviction on Identity Grounds

United States v. Gonzalez, No. 09-40125 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)

Sometimes it seems like sentencing in federal court has more to do with what the defendant did in the past than what he did this time.  Which brings us to Gonzalez and 21 U.S.C. § 851.  The case presents two questions:

First, although § 851 precludes a defendant from challenging the validity of a prior conviction that is more than five years old, may he nevertheless do so on the ground that he is not the person who was convicted?

Answer: Yes.  A defendant raising an identity challenge is not "challenging 'the validity' of the [prior] conviction, but only that it is not a conviction of him; and, if it is not a conviction of him, he likely had no notice of it or reason to sooner challenge it."

That was easy enough.  On to the second question presented: was the Government's evidence sufficient to establish that Gonzalez was the same person convicted of one of the two priors alleged in the enhancement information?  And for that, we need some background.

The enhancement information alleged that Ramon Gonzalez had twice before been convicted of drug trafficking offenses in federal court, in 1988 and 1997.  Gonzalez denied both convictions.  At the sentencing hearing, the Government offered judgements from both of the alleged convictions.

The name on both judgments was Ramon Gonzalez (spelled the same way) and the Social Security numbers identifying the offenders in the prior offenses matched each other as well as the Social Security number of the defendant Ramon Gonzalez. The 1997 conviction correctly reflects appellant’s date of birth as September 26, 1950; the 1988 conviction does not reflect any date of birth information. There was no evidence of any other prior conviction.

What else?  Testimony from Carlos Rosales, the probation officer who supervised Gonzalez after his release from prison for the 1997 conviction:

Rosales testified that while serving as Gonzalez’s probation officer, he was aware that the 1997 conviction was Gonzalez’s second conviction and that his first conviction arose in Corpus Christi. Rosales also admitted that he did not supervise Gonzalez after his first conviction and did not recall whether he and Gonzalez had discussed any prior offenses. He stated that he usually verified with the probationer the information in his file and that he did not have any reason to believe that he did not verify the prior conviction with Gonzalez.

Gonzalez argued that this evidence was insufficient to prove that he was the person identified in the 1988 judgment, pointing to cases from other circuits so holding when there were discrepancies among the various documents offered to prove the priors.  The court of appeals disagreeed:

Here, there are no such discrepancies. The defendant’s name, spelled correctly, and his Social Security number appeared on both prior convictions. Although Gonzalez alleges that identity theft is not uncommon, he does not offer any evidence that another person used his Social Security number at any time in the past. The fact that the addresses on the older convictions are different from each other is virtually meaningless, given that the convictions are nine years apart. The evidence the Government has provided is sufficient to support the district court’s finding that, beyond a reasonable doubt, the instant defendant-appellant was convicted by the 1988 judgment of conviction.

Wait, notice anything missing?  Fingerprint exemplars!  Well, the court notes that in two earlier cases addressing sufficiency challenges under § 851, the Government's proof included fingerprint exemplars.  But "[i]n neither case did we hold that physical evidence was a requirement for proving a prior conviction beyond a reasonable doubt."